(1.) THE petitioner before us was defendant No. 1 in a suit for ejectment, brought by the landlady, plaintiff-opposite party No. 1. The tenancy in suit was in respect of premises No. 40/1, Karaya Road. Ballygunge, in the suburbs of Calcutta. The petitioner was the original tenant in occupation of the above premises at a rental of Rs. 80/- per month. On or about the 4th of January, 1957, the plaintiff opposite party No. I instituted the aforesaid suit, Title Suit No. 41 of 1957, in the court of the Second Subordinate Judge, Alipore. against the petitioner for his ejectment from the above premises, and, in the plaint, a statement was made that the petitioner was a habitual defaulter and was in default in the payment of rent to the requisite extent and for the requisite period and was not, accordingly, entitled to any protection under the West Bengal Premises Tenancy Act, 1956. The suit was brought after service of the necessary notice to quit.
(2.) IN the suit, the petitioner entered appearance and his defense, inter alia, was that he was not a defaulter, as alleged by the plaintiff, and had not forfeited his claim to protection under the Rent Control Law by reason of any default whatsoever. The petitioner further contended that, on account of certain disputes between the parties he was depositing the rent duly with the Rent Controller, but, thereafter, at the request of the plaintiff's husband, such deposit was discontinued and the amounts of rent, as they fell due, remained in deposit with the petitioner, subject to appropriate deductions on account of the fact that he had to pay Corporation rates in respect of the disputed premises, amounting to Rs. 387-10-10 pies, and also to incur costs of repair of the said premises to the tune of Rs. 771/-, and the petitioner claimed that he was entitled to deduct those amounts from the rents which were lying in deposit with him as aforesaid; upon entering appearance in the suit, the petitioner deposited a total sum of Rs. 3,195. 66np. which, according to him, was the rent kept by him, in deposit, as aforesaid, at the time less the amounts, due to him (petitioner) on account of Municipal taxes and repair costs referred to above, which were deducted by him out of the said rent. The petitioner also went on depositing, in terms of sec. 17 (1) of the West Bengal Premises Tenancy Act, 1956, a sum of Rs. 80/- per month on account of current rents, month by month, as required by the said subsection.
(3.) ADMITTEDLY, the opposite party No. 2, claiming to be a sub-tenant in respect of the ground-floor of the above premises (40/l, Karaya Road) under the present petitioner, applied before the Rent Controller under sec. 16 (3) of the West Bengal Premises Tenancy act, 1956, for a declaration of his direct tenancy under the landlady (opposite party No. 1) in respect of the said ground-floor portion. The said application was registered as Case No. 2576-A of 1956. To the said application, the petitioner (tenant) and opposite party No. 1 (landlady) had both been impleaded and, upon the opposite party No. 2's prayer, he was added as defendant No. 2 to the present suit, while the said sec. 16 (3) case was pending before the Rent Controller, and, as such defendant No. 2, he duly filed his separate defense. Eventually, the said sub-tenant opposite party No. 2's prayer for being declared a direct tenant under the landlady opposite party No. 1 and for determination and fixation of the rents, payable by the said opposite party No. 2 and the petitioner respectively, to the said landlady (opposite party No. 1), was allowed by the learned Rent Controller by his orders, dated September 11, 1957, and May 26, 1958, and the rent payable by the petitioner to opposite party No. 1 was determined and fixed at Rs. 69-13-6 pies per month and that payable by opposite party No. 2 to opposite party No. 1 at Rs. 49-8 as, with effect, in either case, from the date of the said final order, namely, May 26, 1958. Immediately thereafter, the petitioner made his present application, purporting to be one under sec. 17 (2) of the West Bengal Premises Tenancy Act, 1956 for determination of the amount of rent, payable by him. month by month, in terms of the said Act (Sec. 17), with a prayer, further, of giving him credit for the excess amounts, paid by him, subsequent to the above date, May 26, 1958. This application, finally, came up for hearing before the learned Subordinate Judge on November 27, 1958, and, by his order of the said date, the learned Subordinate Judge was pleased to hold that the petitioner's application was not maintainable, he being of the opinion that Sub-sec. (2) of Sec. 17 is controlled by sub-sec. (1) and, accordingly, on the admitted fact that the rate, at which the rent was last paid was Rs. 80/- per month, the petitioner could not claim to be entitled to deposit at the lesser rate determined and fixed by the Rent Controller, namely, Rs. 69-13-6 pies p. m. , during the pendency of the present suit, and he held in express terms that "the question of determination of rent due to the new fact, alleged to have cropped up during the pendency of the suit, does not arise". Against this order of the learned Subordinate Judge, the present Rule was obtained by the petitioner.;